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'No votes in justice,' say Canada's wrongfully convicted

Ron Dalton, exonerated in his wife’s death, says governments have just shelved changes urged in no less than five enquiries. “Get tough on crime sounds good . . . . the reality is there are no votes in justice.”

David Milgaard stands between paintings of two justices hanging on a wall at Osgoode Hall in 2002, during a conference on wrongful convictions. (Andrew Stawicki / Toronto Star files)

By Jennifer GrahamThe Canadian Press

Fri., Oct. 2, 2015

REGINA—A Newfoundland man wrongfully convicted of killing his wife more than 25 years ago says major recommendations made after public inquiries into cases such as his tend to “sit on the shelf.”

Chief among them, Ron Dalton says, is the call for an independent federal commission, similar to one adopted nearly 20 years ago in England, to review possible miscarriages of justice. The creation of such a body has been called for in no fewer than five different provincial inquiries.

Dalton, who is now co-president of The Association in Defence of the Wrongly Convicted, says politicians don’t take the issue seriously.

“The reality is there are no votes in justice,” says Dalton, who spent more than eight years in jail for killing his wife who had choked on cereal.

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“Get tough on crime sounds good, and build more prison cells, but when it comes to actually looking at some of the underlying problems, the structural things — what they call systemic issues in most of these inquiries — they don’t really get looked at and there’s not much appetite for change.”

Currently, someone who has been convicted of an offence and who has exhausted all appeals can only apply to the minister of justice for a review.

An independent review commission was called for at the inquiry into one of Canada’s worst wrongful convictions.

David Milgaard was 16 years old when he was convicted of the 1969 murder of Saskatoon nursing aide Gail Miller. He spent 23 years behind bars before the Supreme Court threw out his conviction in 1992. He was exonerated in 1997 through DNA tests.

An $11.2-million inquiry into Milgaard’s wrongful conviction was launched by the Saskatchewan government in 2004.

After hearing from 133 witnesses Justice Edward MacCallum wrote in his report released in 2008 that such a commission might limit the need for similar inquiries in the future.

“Public inquiries will continue to be desirable, or even necessary, in some situations, but they are very expensive exercises, and they are not the answer,” he said. “The answer lies in the creation of an independent review body which will be able to investigate, detect and assist in remedying wrongful convictions.”

The federal Department of Justice did not make anyone available for an interview.

In an email, spokesman Ian McLeod pointed to the Criminal Conviction Review Group, which has been in existence since 1994.

That group is a unit of the Justice Department and reports to the minister. That’s not the same thing as an independent review, Dalton says.

“As a society . . . when we see all these mistakes not being addressed, we tend to lose faith in the system itself — and the system basically operates on faith.

“You have to believe that when you call the police, they’re going to thoroughly investigate any given crime, but particularly a homicide, that they may not always get it perfectly right, but if they don’t that there’ll be a mechanism to correct it as . . . quickly as they can.”

The Milgaard case: What was recommended, what was done

Compiled by The Canadian Press

The Saskatchewan government spent $11.2 million on a public inquiry into the wrongful conviction of David Milgaard, who spent 23 years in prison for a murder he did not commit. The final report was released in 2008. Here are Justice Edward MacCallum’s 13 recommendations and the provincial government’s response so far:

Creation of a dedicated medical examiner’s facility where autopsies would be performed by qualified forensic pathologists in the service of the province. Betty Ann Pottruff with the Saskatchewan Ministry of Justice says the province complied in a “slightly different way” by creating two forensic pathologist positions.

Mandatory sharing of investigation reports between all police forces assisting in major cases. Pottruff says that’s already part of the process.

Assurance that municipal police forces who ask for assistance from the RCMP have in place a written agreement describing the terms, conditions and responsibilities of inter-agency relationships. Pottruff says that’s already covered by existing policy.

Assurance that every statement taken by police from a young person in a major case, whether as a witness or a suspect, is recorded in both audio and video. Pottruff says recording statements is a best practice and police attempt to do so where they can.

Amendment of the Criminal Code to permit academic inquiry into jury deliberations with a view to gathering evidence of the extent to which jurors accept and apply instructions on the admissibility of evidence, particularly relating to inconsistent out-of-court statements. This is not yet allowed.

Referral to the public prosecutions director every complaint to police calling into question the safety of a conviction. The policy change has been made.

No unsolicited contact by prosecutors with the National Parole Board. This recommendation has been completed.

Retention for a minimum of 10 years of exhibits capable of yielding forensics samples in homicide cases. Notification to convicted persons of impending destruction of exhibits, allowing applications for extensions. Pottruff says that is under development and review by a provincial-territorial working group.

Scanning and electronic storage of documentary exhibits in all indictable offence cases, unless a court orders otherwise. Pottruff says most exhibits are being kept, but a policy is still in the works across jurisdictions.

Retention for a year and in their original form of all prosecution and police files, including police notebooks relating to indictable offences. They should then be scanned and entered into a database where a permanent, secure electronic record can be kept. Pottruff says there are policies on retention, but they’re not consistent across the country.

The informing of victims of crime when their cases are resolved. That is in place with the new Canadian Victims Bill of Rights.

Door to compensation should not be closed for lack of proof of factual innocence where a miscarriage of justice has resulted from an obvious breach of good faith in the application of standards expected of police, prosecution or the courts. Pottruff says there is always an executive power within government to compensate.

Investigation of wrongful conviction claims should be done by a review agency independent of government. The federal government has not done this and instead points to the Criminal Conviction Review Group, which reports to the minister within the Justice Department.

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